URSULA FRAYNE CATHOLIC COLLEGE and TOWN OF VICTORIA PARK
[2020] WASAT 17
•31 JANUARY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: URSULA FRAYNE CATHOLIC COLLEGE and TOWN OF VICTORIA PARK [2020] WASAT 17
MEMBER: MR S WILLEY, MEMBER
HEARD: 18, 19 AND 20 SEPTEMBER 2019
DELIVERED : 31 JANUARY 2020
FILE NO/S: DR 210 of 2018
BETWEEN: URSULA FRAYNE CATHOLIC COLLEGE
Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Town planning - Development application - Proposed green space - Noise - Acoustic assessment - Amenity - Noise as an aspect of amenity - Compatibility - Orderly and proper planning - Community benefit - Planning conditions
Legislation:
Environmental (Noise) Regulations 1997 (WA), reg 4(1), reg 5(1), reg 7, reg 16(1), reg 16(3), Sch 2
Environmental Protection Act 1986 (WA)
Interpretation Act 1984 (WA), s 5
Metropolitan Region Scheme
Planning and Development (Local Planning Scheme) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 2, cl 61(e), cl 67, cl 67(n), c 67(x)
Planning and Development Act 2005 (WA), s 68(1)(a), s 241(1), s 257B(2), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 27(2), s 31
Town of Victoria Park Local Planning Scheme No 1, cl 3(1)(c), cl 15(1), Sch B
Result:
Application for review dismissed
Summary of Tribunal's decision:
Ursula Frayne Catholic College (applicant or School) sought approval to develop and use two adjoining residential lots for the purposes of a 'green space'. The green space was to be used by up to 70 students during class times as well as lunch and recess. It was not in contest that the proposed green space was properly classified as an 'educational establishment' under the Town of Victoria Park Local Planning Scheme No 1 (LPS 1). 'Educational establishment' was a use capable of approval on residential land in LPS 1.
The proposed green space was to be located on the opposite side of the School's campus and would abut residential dwellings on each side. At the rear there were also residential dwellings (separated by an intervening rightofway).
The Town of Victoria Park (respondent) refused the proposed green space on 21 May 2019.
This case centred on the noise impacts of the proposed green space on adjoining and nearby dwellings. The Tribunal heard evidence from acoustic experts, town planners and some residents from adjoining dwellings.
Ultimately the Tribunal found that the acoustic impacts from the proposed green space would be unacceptable from an amenity perspective. The Tribunal preferred the evidence of the respondent's acoustic expert and found that the noise impacts would likely exceed to a significant degree the noise levels estimated by the School's acoustic consultants. For these reasons, the Tribunal also found that the proposal would be contrary to orderly and proper planning.
The Tribunal also found that the range and extent of the conditions proposed to 'control' the use of the green space was a tacit acknowledgement that the land was not suitable for use as educational purposes (as a green space). The Tribunal found that the correct decision was to affirm the respondent's refusal of the proposed green space.
Category: B
Representation:
Counsel:
| Applicant | : | Mr P McQueen & Mr A McGlue |
| Respondent | : | Mr P L Wittkuhn |
Solicitors:
| Applicant | : | Lavan |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158
Association of Islamic Dakwah in Western Australia and City of Gosnells [2011] WASAT 80
Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26
Australian Unity Property Limited v City of Busselton [2018] WASCA 38
Bio Organics Pty Ltd and Shire of Serpentine-Jarrahdale [2016] WASAT 96
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52
Catalano and Shire of Harvey [2017] WASAT 55
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141
Del Giacco and City of Melville [2008] WASAT 134
Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186
GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1; 151 LGERA 74
John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19
Kipa Freeholds v Development Assessment Commission (1999) 101 LGERA 414
Kogan and City of Vincent [2019] WASAT 75
Lancaster and City of Swan [2012] WASAT 241
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1
Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132
Remove-All-Rubbish Pty Ltd v City of Salisbury (1989) 51 SASR 26
Ridgecity Holdings Pty Ltd and City of Albany [No 2] [2006] WASAT 187
Sanders v City of South Perth [2019] WASC 226
Self and Shire of Serpentine-Jarrahdale [2005] WASAT 140
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Warr v Town of Cambridge [2019] WASC 362
Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Ursula Frayne Catholic College (the applicant or the School) seeks approval for a proposed 'green space' on two adjoining lots (Lot 32 and Lot 33) on Teague Street, Victoria Park (Appeal Site).
The green space will be used in conjunction with the applicant's school campus which is located on the opposite side of Teague Street. The 'green space' will be used for educational purposes.
The application for approval (Application) was lodged with the Town of Victoria Park (Town or respondent) on 21 February 2018.
On 27 August 2018 the applicant applied for a Tribunal review on the basis that the Application had not yet been determined by the Town and, therefore, was deemed to have been refused.
Following mediation in the Tribunal, the Town reconsidered a modified Application on 21 May 2019 pursuant to an order made under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Town resolved to:
[Refuse] the application submitted by Roberts Day (DA Ref: 5.2018.124.1) for Change of Use to Educational Establishment (Green Space) and associated works at 28 and 30 (Lot 32 and 33) Teague Street, Victoria Park, as indicated on the documents dated received 29 January 2019, in accordance with the provisions of the Town of Victoria Park Town Planning Scheme No. 1 and the Metropolitan Region Scheme, for the following reasons:
1.The proposal is inconsistent with Town Planning Scheme No. 1 Precinct Plan P6 which provides that non‑residential uses are to be limited to safeguard residential amenity and that any expansion of the School 'will not be permitted where it involves significant loss of existing housing or will impinge on the amenity of surrounding residents'.
2.The proposal is considered to impinge on the amenity of surrounding residents.
3.The proposed change of use would prevent the land from being redeveloped as residential lots, 'locking in' a significant loss of housing as a permanent rather than temporary state.
4.The proposal is inconsistent with the Town's Local Planning Policy 3 'Non-Residential Uses in or Adjacent to Residential Areas' because it will cause adverse amenity impacts on the locality including (but not limited to) isolation of residential lots from the residential streetscape, security issues associated with the development and noise from the proposed land‑use.
5.The proposed development is considered to not satisfy the following matters identified in Schedule 2, Clause 67 'Matters to be considered by local government' of the Planning and Development (Local Planning Schemes) Regulations 2015:
i.Sub‑clause (b) – the requirements of orderly and proper planning;
ii.Sub-clause (g) – any local planning policy for the Scheme area;
iii.Sub-clause (m) – the compatibility of the development with its setting including the relationship of the proposed development to development on adjoining land or on other land in the locality…
iv.Sub-clause (n) – the amenity of the locality including: environmental impacts of the development; the character of the locality; and social impacts of the development;
6.On the basis of the acoustic information provided and unresolved matters, the Council is not satisfied that noise impacts resulting from the development are acceptable and will not unreasonably impact upon the amenity of the adjacent residential properties.
The Application that was considered by the Town on 21 May 2019 is the relevant proposal being considered by the Tribunal.
The Application
The Application includes both physical works and proposed activities. In terms of physical works, the Application proposes:
(a)landscaping in the form of grassed areas together with trees and shrubs interspersed (particularly at the boundaries);
(b)a roofed but open shelter with seating set back approximately 3 metres from the Teague Street road reserve frontage;
(c)some low level lighting;
(d)a 2.4 metre high acoustic wall to the side and rear boundaries;
(e)1.8 metre high fencing to Teague Street together with an inwardly opening gate to control access to the green space; and
(f)no retaining, fill or excavation ‑ the existing topography of the Appeal Site will be retained.
In terms of activities, the Appeal Site will be used for passive recreation activities (described as 'contemplative study sessions') during school hours (8.00 am to 4.00 pm) for a maximum of 70 students (the equivalent of two classes of students) always under active staff supervision.
Students are also allowed to use the Appeal Site during lunch and recess breaks under staff supervision. No ball sports, formal sports nor 'noise‑generating performing arts' are permitted. No loud communications will be permitted on the green space. Students will be required to sit down or stand but are not to engage in extensive or vigorous movements. Students are to remain central in the green space and not occupy the fringe areas.
Staff are required to relocate students who congregate in a particular area such that it is likely to cause higher noise levels for an adjacent residential property. Staff are also not to call out to students over long distances.
A management plan will be required to, inter alia, ensure that the process for students crossing Teague Street and accessing the green space is to be carried out as quietly as possible.
In these reasons, I will refer to the applicant's proposal as the Proposed Development, 'green space' or 'School open space'.
Applicable planning framework
Local Planning Scheme No 1
Town of Victoria Park Local Planning Scheme No 1 (LPS 1) is a local planning scheme continued pursuant to s 68(1)(a) of the Planning and Development Act 2005 (WA) (PD Act). LPS 1 is also a 'written law' for the purposes of s 5 of the Interpretation Act 1984 (WA). LPS 1 is to be read and applied in accordance with the orthodox canons of construction.
As a matter of legislative context, it is relevant that planning schemes are not ordinarily drafted by Parliamentary Counsel: Sanders v City of South Perth [2019] WASC 226 at [98] ‑ [99]. As a result, planning schemes should be construed broadly and sensibly, not pedantically: Australian Unity Property Limited v City of Busselton [2018] WASCA 38 at [84] (Buss P, Murphy and Mitchell JJA); Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132 at [25] (McLure JA, Steytler P and Pullin JA agreeing).
LPS 1, like all local planning schemes in Western Australia, include the provisions contained in Sch 2 to the Planning and Development (Local Planning Scheme) Regulations 2015 (WA) (LPS Regulations). By reason of s 257B(2) of the PD Act (together with reg 8(1)(c) and reg 10(4) of the LPS Regulations), the Sch 2 provisions (known as the 'deemed provisions') are to be read and applied as part of LPS 1.
The Appeal Site together with surrounding land is zoned 'Residential' under the LPS 1 and 'Urban' in the Metropolitan Region Scheme.
The parties consider, and I agree, that the proposed use of the Appeal Site is for as an 'educational establishment' for the purposes of LPS 1. An 'educational establishment” is defined in Sch B to LPS 1 to mean:
premises used for the purposes of providing education including premises used for a school, higher education institution, business college, academy or other educational institution[.]
An 'educational establishment' is an 'AA' use in LPS 1. Pursuant to cl 15(1) of LPS 1 an 'AA' use is not permitted unless the Council (and now the Tribunal on review) has granted Development Approval.
Precinct Plan P6
The Appeal Site is located within Precinct P6 under LPS 1. The Precinct Plan forms part of LPS 1: cl 3(1)(c) of LPS 1.
Precinct Plan P6 states:
HOW IT WORKS
This Precinct Plan describes the Council's town planning intentions for this precinct. It contains a Statement of Intent which applies to the whole Precinct and several other statements which apply to specific areas within the Precinct. These statements summarise the kind of future that is seen to be appropriate for the Precinct.
…
STATEMENT OF INTENT
The Victoria Park Precinct will remain as attractive and essentially low to medium scale residential area set on some of the highest land within the locality.
The retention and rejuvenation of existing housing, particularly dwellings indicative of the era in which the locality was developed, and selective sensitively designed 'infill' housing is the most favoured form of development and will be encouraged.
…
Development or expansion of existing non‑residential uses in the precinct will be limited, to safeguard residential amenity …
RESIDENTIAL ZONE
Single houses and group housing will occupy a large portion of the precinct, in line with the R‑Codes R40 standards. No multiple dwellings will be permitted in these locations.
…
The existing schools and the Association for the Blind are acceptable uses within the precinct. Any further expansion or intensification of the uses, however, will not be permitted where it involves significant loss of existing housing or will impinge on the amenity of surrounding residents. Generally, development should be in accordance with planning policy relating to non‑residential development in or adjacent to residential areas[.]
…
Priority will be given to ensuring that new development, particularly infill and development at higher densities, does not result in undue loss of privacy or amenity for existing residents.
Local Planning Policy No 3 Non-Residential Uses Adjacent to Residential Areas
The Town has prepared Local Planning Policy No. 3 NonResidential Uses In or Adjacent to Residential Areas (December 2018) (LPP 3) which is a policy to address the development of residential land for nonresidential uses and also to address that development of nonresidential uses on land adjacent to residential land.
The objectives of LPP 3 include ensuring that non-residential land uses are compatible with the character, scale and amenity of the surrounding residential properties.
Planning context and history
The Appeal Site:
(a)has a total area of 1,442m2;
(b)has a frontage to Teague Street of 30.18 metres;
(c)abuts a rightofway to the rear (also for a length of 31.18 metres); and
(d)has side boundaries of 47.78 metres;
(e)slopes generally downward from the south‑east towards the north‑west and also generally downward from Teague Street towards the rightofway.
The Appeal Site together with 20 and 22 Teague Street have been purchased by the Roman Catholic Archbishop of Perth (Catholic Archbishop). Numbers 20 and 22 Teague Street are separated from the Appeal Site by two intervening freehold lots (on which three dwellings are located).
The land on Teague Street that is owned by the Catholic Archbishop (that faces the School campus) is vacant as the dwellings that were present have all been demolished. By reason of cl 61(e) of the deemed provisions, development approval is not required for the demolition of a single dwelling. Prior to the Catholic Archbishop's purchases, all lots on Teague Street that fronted the applicant's campus were occupied by dwellings.
The applicant's campus has been incrementally developed for education purposes. Pursuant to development approvals issued in 2002, 2009 and 2017 the built form across the campus has gradually intensified ‑ sometimes as the expense of areas that were being used for recreation purposes.
The street block delineated by Teague Street, Harper Street, Sunbury Road and Duncan Street is zoned 'Residential' with a coding of R40 as is the campus and the associated St Joachim's Catholic Church.
The general locality is zoned 'Residential' and is generally framed by Shepparton Road (to the south), the Perth‑Armadale Railway (to the east), the 'Burswood Road Office/Residential' Zone (to the north) and Miller Street (to the south‑east).
Issues
The ultimate issue for the Tribunal is whether the Proposed Development should be approved in the exercise of discretion. In determining that question, the Tribunal will address the following specific issues:
1.the interpretation of Precinct Plan P6;
2.whether the Proposed Development is acceptable in relation to noise;
3.whether the Proposed Development is acceptable in relation to visual amenity and compatibility;
4.whether the Proposed Development benefits the community generally notwithstanding the impact on individuals; and
5.whether the Proposed Development is consistent with orderly and proper planning.
Evidence
The Tribunal received evidence from residents and experts. The Town called evidence from the following residents who live near the Appeal Site:
1.Mr Michael Fay;
2.Ms Rowena Holland;
3.Mr Francis Butson; and
4.Mr Kim Holland.
None of the residents were required to give oral evidence at the final hearing.
The Town also called expert evidence from Mr Martti Warpenius (noice acoustics) and Mr Robert Cruikshank (urban planning).
The applicant called expert evidence from Mr Tim Reynolds and Mr Michael Ferguson (noise acoustics) and Mr Eric Denholm (urban planning).
Role of the Tribunal
This matter arises in the Tribunal's review jurisdiction.
The role of the Tribunal is to hear the matter de novo and to make the correct and preferable decision: s 27(2) of the SAT Act.
Issue 1: The interpretation of Precinct Plan P6
Precinct Plan P6 is a central aspect of the planning framework in this case. The term 'precinct plan' is defined in Sch B to LPS 1 to mean 'a document setting out the planning intentions for a particular precinct'. It is not in contest that Precinct Plan P6 is such a 'precinct plan'.
I should also add, for completeness, that Precinct Plan P6 is notto be regarded as a 'local development plan' (LDP) for the purposes of Pt 6 of the deemed provisions.
Precinct Plan P6 is a plan which outlines a planning vision for the precinct. It does not fall within the terms of a LDP as defined in cl 46 of the deemed provisions as it does not detail site and development standards nor does it specify exemptions from the need to obtain development approval. Precinct Plan P6 is to be read as part of LPS 1: cl 3(1)(c). Indeed, no party suggested otherwise.
It follows that the principles of construction that apply to LPS 1 also apply to Precinct Plan P6. Those principles include that Precinct Plan P6 should be read and considered as a whole and applied in a practical and common sense manner. It is also relevant that, unlike the planning framework that was applied in Warr v Town of Cambridge [2019] WASC 362 (Allanson J), Precinct Plan P6 forms part of LPS 1 and is not a separate policy instrument.
In my view, Precinct Plan P6 makes it clear that the existing schools (together with the Association for the Blind) are acceptable uses in the precinct. That is a significant point. It is not a case that the aspirations of the precinct plan are that the existing educational centres should be phased out. These educational uses form part of the existing fabric of the precinct and are considered acceptable in that context.
However, on the issue of potential expansion or intensification of the schools, Precinct Plan P6 is more guarded. Certainly expansion or intensification of these schools is not excluded but, in general terms, should only proceed where there will no significant losses of existing housing or will not impinge on the amenity of surrounding residents.
Precinct Plan P6 seeks to retain existing housing stock and that selective and sensitive redevelopment of specific sites is the most preferred outcome. Infill development at higher densities should not result in an undue loss of privacy or amenity for existing residents. Any development should generally be in accordance with LPP 3.
I had the benefit of evidence from two urban planners: Mr Cruikshank from the Town and Mr Denholm from the planning firm, RobertsDay.
The planning experts were each asked about how the phrase 'impinge on' should be read and applied in the context of Precinct Plan P6. The meaning of 'impinge on' is ultimately a question for me, but I allowed such evidence as the views of planners who routinely work with these instruments is of assistance.
Mr Cruikshank was of the view that 'impinge on' means that any adverse impact ‑ no matter how minor ‑ must result in a proposed development being refused: ts 189, 20 September 2019. Mr Denholm, in the joint statement, expressed the view that the phrase 'impinge on' should be read to mean that a 'small impact' would be acceptable.
In my view, 'impinge on' in the context of Precinct Plan P6 cannot mean that any impact on amenity must mean a proposal to intensify or expand an existing school must be refused. The phrase 'impinge on', in this context, takes its ordinary meaning which is 'to have an effect on; to encroach or infringe on': Macquarie Dictionary, 4th ed, 2006, page 598.
That is, in order to 'impinge on' amenity, there must be an adverse impact that is of consequence in a town planning sense. To that extent, I do not agree with the opinion of Mr Cruikshank on how the phrase 'impinge on' should be read and applied in the context of Precinct Plan P6.
However, I do consider that 'impinge on', in the context of Precinct Plan P6, means that any adverse impact may only be at the lower end and cannot be significant or extreme. In this sense, I agree with Mr Denholm that minor amenity impacts may be appropriate.
In my opinion, the clear intent of Precinct Plan P6, in an overall sense, is to protect and guard the amenity of the existing residential areas within the precinct. There is no prohibition on the expansion or intensification of an existing school provided, relevantly, that the amenity of surrounding residents is not 'impinged on'.
I should add, for the avoidance of doubt, that to the extent that Precinct Plan P6 discusses amenity, it is not inconsistent with cl 67(n) of the deemed provisions in the sense contemplated by s 257B(3) of the PD Act.
Clause 67(n) requires me to have 'due regard' to:
the amenity of the locality including the following:
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development.
The term 'amenity' is defined in cl 1 of the deemed provisions to mean:
All those factors which combine to form the character of an area and include present and future amenity.
As was made clear by the Tribunal in Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1 at [47] (Puma Energy), s 257B(3) of the PD Act operated to make the former cl 36(h) of (then) Town of Victoria Park Town Planning Scheme No 1 (TPS 1) redundant and of no effect of the basis of 'inconsistency'.
Clause 36 of TPS 1 (as it then was) outlined the range of relevant planning considerations that arise in the exercise of discretion. Clause 36, including cl 36(h), which required the amenity of the locality to be conserved, was replaced with cl 67 of the deemed provisions at the commencement of the LPS Regulations on the basis that the two provisions were 'inconsistent': Puma Energy at [46] citing CastleConstructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 at [55(h)] (Tobias JA).
However, Precinct Plan P6 is not inconsistent with cl 67 of the deemed provisions. The two provisions sit comfortably together. Clause 67 is a general provision that outlines a range of relevant considerations that might arise for consideration in a development application. Precinct Plan P6 is a specific plan that deals with a discrete area.
In considering the question of amenity under cl 67(n) of the deemed provisions, Precinct Plan P6 informs the exercise of discretion as it emphasises that the School and other educational uses are part of the present and future amenity and that there is no prohibition on the expansion or intensification of the School. However, any intensification or expansion of the School should not, relevantly, 'impinge on' the amenity of surrounding residents.
Issue 2: Whether the anticipated noise levels are acceptable
Noise is a planning consideration that informs the question of amenity. Where the issue of noise does arise the question is whether the noise associated with a proposed land use will adversely affect the existing amenity of the locality. However, in this instance, as I have discussed, so far as Precinct Plan P6 arises for consideration, the relevant question is whether the Proposed Development will 'impinge on' the amenity of surrounding residents.
The regulatory regime relating to noise control and management in Western Australia is established by the Environmental Protection Act 1986 (WA) (EP Act) and, in particular, the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations).
The Court of Appeal recently had occasion to consider and explain the regulatory regime for noise in Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 at [34] ‑ [49] (Murphy JA, Mitchell JA and Beech JA).
Regulation 4(1) of the Noise Regulations provides that the requirements prescribed by reg 7 for the emission of noise from premises operate, in general terms, as prescribed standards for the purposes of the EP Act. Regulation 5(1) provides that noise emitted in contravention of a standard prescribed under reg 7 is taken to be unreasonable.
However, reg 16(3) of the Noise Regulations provides that reg 7 does not apply to 'community noise'. Regulation 16(1) sets out that 'community noise' means a type of noise listed in Sch 2 to the NoiseRegulations. Item 4 of Sch 2 provides that noise emitted as a consequence of an educational activity from premises occupied for education purposes is 'community noise'.
Therefore, in a strict sense, the Noise Regulations have noapplication to the Proposed Development as it involves an educational land use.
However, that does not mean that noise is not an issue in a town planning sense. Indeed, the applicant fairly agrees that noise is an issue to be considered. This is because, leaving the question of compliance with Noise Regulations to the side, noise can still be an amenity issue in a land use planning sense.
The Noise Regulations set out the maximum permissible noise levels for land uses based on levels, frequency and matters such as impulsiveness and tonality. It is generally accepted that land uses that will cause noise impacts on adjoining properties that exceed the maximum noise permitted by the Noise Regulations are not acceptable in the context of development control: GMF Contractors Pty Ltd and Shire of Serpentine‑Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1; 151 LGERA 74 at [61] (GMF).
Compliance with the Noise Regulations has been described as a 'necessary, but in some cases not sufficient criterion, to ensure that the noise emissions from a proposed development would not have an unacceptable acoustic impact on the locality': GMF at [61].
Even where a land use complies with the Noise Regulations, it does not automatically follow that the noise does not constitute an adverse impact on the amenity of the locality in a planning sense: Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [39] (Land Alliance).
In Del Giacco and City of Melville [2008] WASAT 134 the Tribunal refused a proposed storage yard adjacent to a residential area even though the proposal complied with the Noise Regulations: at [38]. Noise associated with traffic arising from a proposed place of worship was an issue in Association of Islamic Dakwah in Western Australia and City of Gosnells [2011] WASAT 80 at [50] ‑ [59].
I agree with the Tribunal's comments in Land Alliance, in the context of a proposed child care centre, where it was observed at [29] that:
… the modelling of noise is an inexact science. The results will depend upon how long the representative test period is, whether an influencing factor is assigned, and the quality of the data set used to underpin the modelling. It will depend upon whether a value is added to take into account tonality, modulation or impulsiveness of the noise. It will depend upon where, within the noise receiving property, the measurement of noise is taken.
The evidence relating to noise
I had the benefit of evidence from three acoustic engineers. Despite what I am sure are the best efforts of these experts, the noise evidence was dense and complex. That is not meant as a criticism: the evidence of all three experts Mr Ferguson, Mr Reynolds and Mr Warpenius ‑ was of assistance to me.
However, the Proposed Development is unusual and therefore difficult to model in an acoustic sense. The Proposed Development presents as open space but is open space in appearance only. The green space is intended to be an area that is closely supervised so as to control noise. Therefore, the green space is to operate as if it were, in effect, a classroom ‑ but it is plainly not a classroom.
Consideration of the Noise Regulations in the context of the Proposed Development is somewhat artificial given that the 'community noise' is exempt. Nevertheless, noise is the central planning consideration before me.
Mr Ferguson's evidence
Mr Ferguson's firm (Gabriels Hearne Farrell Pty Ltd) prepared a report relating to noise that was submitted to the respondent as part of the application for development approval. The acoustic report has been updated incrementally including as a result of feedback from Reverberate Consulting ‑ an acoustic firm engaged by the respondent. Mr Warpenius is a Director of the firm Reverberate Consulting.
Mr Ferguson's report notes that the noise relating to educational uses are 'community noise' for the purposes of the Noise Regulations.
Notwithstanding that, he outlines that the relevant Assigned Noise Level of neighbouring noise sensitive premises can be used as a guide for comparative purposes. The Assigned Noise Levels are informed by the number of major roads and percentage of commercial properties within a 450 metre radius of the noise receiver position.
The relevant Assigned Noise Levels for the Proposed Development are:
| Type of premises receiving Time of day Assigned Noise Level (dB) | ||||
| LA10 LA1 LAmax | ||||
| Noise sensitive premises; highly sensitive area. | 0700 to 1900 hours Monday to Saturday | 48 | 58 | 68 |
| (i.e. within 15m of a residential building) | 0900 to 1900 hours Sunday and public holidays | 43 | 53 | 68 |
| 1900 to 2200 hours all days | 43 | 53 | 58 | |
| 2200 hours on any day to 0700 hours Monday to Saturday and 0900 hours Sunday and public holidays. | 38 | 48 | 58 | |
| Noise Sensitive premises: any area other than highly sensitive area | All hours | 60 | 75 | 80 |
For the purposes of clarity, the sound level parameters used for the various environmental noise criteria and measurements are described by Mr Ferguson as follows:
(a)LAmax – is the 'A' weighted noise level which is the highest recorded noise level within a certain measurement period i.e. the loudest shout from a child within a measure.
(b)LA1 is the 'A' weighted noise level which is the statistical noise level that is exceeded for 1% of the measurement period i.e. a grouping of several shouts that are amongst the highest in the measurement.
(c)LA10 is the 'A' weighted noise level which is the statistical noise level that is exceeded for 10% of the measurement period i.e. the higher end of the range within a typical conversation.
(d)LAeq is the 'A' weighted noise level which is the logarithmic average noise level of the measurement period i.e. the average noise level of a conversation.
(e)LA90 is the 'A' weighted noise level which is the statistical noise level that is exceeded for 90% of the measurement period i.e. typically used as the background noise level within a measurement period.
(f)LAmin is the 'A' weighted noise level which is the lowest recorded noise level within a certain measurement period.
Mr Ferguson's evidence focused on the LA10 as the 'critical' criterion through which to model and assess noise issues. As set out above, the LA10 is, in effect, the loudest 10% of the measurement period. Mr Ferguson's focus on the LA10 as being the key criterion was not disputed by the other acoustic experts.
Mr Ferguson modelled the existing noise levels within the School. Noise monitors were placed in the front and rear yards of 26 Teague Street to measure existing noise levels. That monitoring indicated that the LA90 levels were an average of 45 decibels (dB) in the front yard of 26 Teague Street and 40 dB in the rear yard. The LA10 levels over the lunch period were 62 dB in the front yard and 50 dB in the rear.
Noise was then monitored within an art class for the purposes of assessing levels in a classroom environment. However, Mr Ferguson considered that such modelling was inutile because there is little comparative value between a highly reverberant classroom and an outdoor 'green space' area.
Noise was also measured within an existing School courtyard following discussions with Reverberate Consulting. The courtyard measurement allowed a LA10 Sound Power Level to be determined. That exercise yielded a LA10 noise level of 72 dB. During the course of the lunchtime there was up to 120 students in the courtyard but this number reduced over the duration of the lunch period to between 40 and 80 students. The courtyard was actively monitored by the acoustic experts such that the approximate number and position of students could be recorded as well as the distance between the students and the microphone.
The recordings were then modelled with acoustic modelling software (soundPLAN 8.0).
The Sound Power Level for an individual student talking was then estimated at 81.5 dB(A). A Sound Power Level is an acoustic energy emitted by a source that produces a Sound Pressure Level. The Sound Power Level is constant but the Sound Pressure Level varies dependent on the proximity of the Sound Power Level.
The Sound Power Level informs the modelling of noise for the use of the green space. Mr Ferguson's modelling was based on 120 students (the number of students present early in the lunch period that was observed by him and Mr Warpenius).
Mr Ferguson then used that data to model a number of scenarios:
Scenario
Predicted noise levels
1. Half of the students talking on the green space (35 of 70 students)
LA10 56 to 60 dB in the rear courtyards of adjacent properties.
LA10 61 to 65dB with a predicted internal noise level of LA10 51 to 55 dB on the sides of neighbouring properties (where the windows are left open). LA10 46 to 50 dB if the windows were closed.
58 dB at the outside face of the windows of the second storey of the rear houses across the laneway from the Appeal Site and approximately 43 dB internally
2. One third of students talking on the green space (20 of 70)
LA10 52 to 56 dB in the rea yards of adjacent properties, 59 to 62 dB at the neighbouring ground floor windows, and 56 dB at the upper storey of the rear houses across the laneway. With closed windows the level will be approximately 44 to 47 dB inside the residences to the side and approximately 41 dB inside the upper floor of the rear houses.
3. Worst case scenario (whereby a group of students gathers close to a neighbouring fence)
LA10 58 to 64 dB in the adjacent rear yard.
4. The existing playing courts within the School
LA10 60 to 62 dB at the front façade of the neighbouring houses and 50 to 53 dB in the rear yards of 26 and 32 Teague Street.
5. Combined modelling of existing courts and green space operating simultaneously
LA10 56 to 60 dB in the rear yards and 62 to 64 dB at the front façades.
6. Additional modelling taking account of 2.4 metre acoustic fence
3 to 5 dB reduction in noise as against 1.8 metre high fence
Mr Ferguson's conclusions were that the modelling predicted increases in noise levels at the adjacent noise sensitive premises of up to 8 dB (or up to 4 dB taking account of the acoustic fence), it was Mr Ferguson's opinion that these increases would only be during recess and lunchbreaks and not when classes are being conducted on the green space.
Mr Warpenius' evidence
Mr Warpenius was engaged by the Town to review the acoustic assessment undertaken by Mr Ferguson's firm. He and Mr Ferguson met prior to undertaking field observations in February 2019.
In terms of noise modelling, Mr Warpenius did not agree with Mr Ferguson's view that monitoring of one lunchtime was sufficient in order to establish background noise levels that could be extrapolated and modelled for the green space. Mr Warpenius considered that a week's monitoring was required.
In terms of monitoring of the internal courtyard, Mr Warpenius considers that the measured average maximum, the LA10 was 72 dB. Mr Warpenius observed that the LA10 tended to be generated by raised individual voices, not the groups of students considered as a whole.
Mr Warpenius' observation that the LA10 was dominated by individual voices represents a significant point of departure between him and Mr Ferguson (and Mr Reynolds). The significance of an individual (rather than collective) voice controlling the LA10 is that the number of students in a particular space is less significant. It also means that Mr Warpenius considers that Mr Ferguson's modelled Sound Power Level is wrong because it is a Sound Power Level based on 120 students.
Mr Warpenius considers that the modelled number of students should have been from the last 15 minutes of the lunchbreak that he and Mr Ferguson observed because this is when the student numbers reduced to more closely match the number of students that will be in the green space (70 students). It is also the case that if 70 students generates the same Sound Power Level as 120 students, then the soundpowerperstudent calculation would be need to be adjusted upward and therefore Mr Ferguson's modelled scenarios are likely to be inaccurate.
In terms of observed activities during the lunchtime, these were generally non‑physical and consisted of (generally) students sitting/standing and eating or talking. The LA10 was generated by animated female students talking with other females or animated male students in a predominately female group. Mr Warpenius considers that, in an overall sense, the students were generally well‑behaved.
Mr Warpenius noted differences between how he and Mr Ferguson observed and monitored the courtyard activities from a noise assessment perspective. Mr Warpenius says he constantly alternated between the reading on his sound level meter as against the activities being observed whereas Mr Ferguson did not appear to view his sound meter and therefore could not correlate the actual observed loudest activities with the live noise levels they generated. I note that Mr Ferguson did not take issue with Mr Warpenius' observations as to the differences in how each of them monitored the courtyard noise.
Because Mr Warpenius actively monitored his sound level meter with observing the students, he is very confident that the LA10 is controlled by individual rather than collective voices. This difference in opinion is critical because, as I have explained, Mr Ferguson's evidence is premised on the number of students present within a space which each contribute to an overall noise level.
Mr Warpenius considers that the noise impacts of the Proposed Development on the rear yard at 26 Teague Street will increase by up to 18 dB and up to 21 dB for the windows that side onto the green space. Mr Warpenius also considers that the Proposed Development will result in increases in noise at the upper floor windows of 15A, 15B and 17A Sunbury Road (the houses that are located on the opposite side of the right-of-way) of up to 20 dB.
Mr Warpenius therefore considers that the noise levels at 26 Teague Street (and by inference 32 Teague Street) will exceed the Assigned Noise Level of 48 dB by a significant margin.
Mr Reynolds' evidence
Mr Reynolds (from Herring Storer Acoustics) also prepared an acoustic report. He was instructed to review the work undertaken by both Mr Ferguson and Mr Warpenius. Mr Reynolds recommended the inclusion of additional (acoustic) fencing to address noise.
It is Mr Reynolds' opinion that the Proposed Development should aim to only increase noise levels by 3 dB at 26 and 32 Teague Street.
In terms of impacts on the internal noise levels of 26 and 32 Teague Street, Mr Reynolds considers that the noise impacts caused by the Proposed Development will be between 2 to 3 dB(A). In terms of impacts on the external noise levels in the front and rear yards of 26 and 32 Teague Street, the anticipated noise levels would be LA10 65 dB(A) (in the front yards) and LA10 53 dB(A) (in the rear yards).
Mr Reynolds is not concerned about the noise impacts of the Proposed Development on the internal areas nor the front façades of 26 and 32 Teague Street. This is because he considers that it is reasonable for the residents to close their windows whenever the green space is in use. However, the rear yards are different. Mr Reynolds considers the noise levels received in the rear yards of 26 and 32 Teague Street should be controlled.
In order to control noise, a number of mitigation measures could be implemented including landscaping, boundary fences or barriers. Of these, Mr Reynolds recommends the installation of the 2.4 metre high acoustic fence to control noise.
With the inclusion of this acoustic fencing, it is Mr Reynolds' opinion that the noise impacts on 26 and 32 Teague Street will be something less than 3 dB. Without the acoustic fence, Mr Reynolds considers that the impacts of the Proposed Development on the rear yards of 26 and 32 Teague Street would be unacceptable.
Joint report of the noise experts
The noise experts prepared a joint statement. Much of the statement outlines why Mr Warpenius disagrees with Mr Ferguson and, in turn, Mr Reynolds' opinions as to whether the Sound Power Level should be measured based on 50% of students talking (in the courtyard) as considered by Mr Ferguson (Scenario 1) and, in turn, Mr Reynolds' and Mr Warpenius' reasons why individual raised voices are the dominant noise source so far as the LA10 is concerned.
However, each expert agrees that 'no loud communication should be permitted between students' on the green space. No raised voices should be allowed.
Evaluation of the noise evidence
Noise is the central issue on which this case turns. Having evaluated the acoustic evidence, I consider that the noise impacts of the Proposed Development would exceed the degree of impact on the amenity of surrounding residents that the planning framework considers tolerable or acceptable.
As I have explained, the highly unusual nature of the Proposed Development presents its own challenges. The opinions of each of the experts is reliant on a number of assumptions about, in effect, what factors govern or control schoolyard noise from an acoustic perspective and how that noise (recorded and modelled within the School) will affect residential properties that surround the proposed green space (in a rather different physical context from the School). As I have also explained, the acoustic experts did not agree on the assumptions which underpin the acoustic modelling of the green space.
In terms of the evaluation of the noise evidence, I am of the view that Mr Ferguson and Mr Reynolds have made what they consider to be reasonable assumptions to attempt to understand the noise profile of the green space.
However, I agree with Mr Warpenius that the controlling factor for noise is likely to be the random raised voices from individuals rather than an aggregate of the collective student numbers present in a particular area. His explanation of why this is so is, to me, logical. In the context of a 15 minute period, the LA10 refers to the loudest 90 seconds within that period.
I had the benefit of a site view where I could observe the students both in and outside of class as well as a video of the students mingling and playing during recess (Exhibit 7). Having observed the students, watched the video and considered the evidence, I consider that the loudest 90 seconds of noise within a 15 minute period is governed by raised individual voices rather than the general hum of student noise. I therefore agree with Mr Warpenius' assessment that the source of the LA10 is individual voices.
I am mindful that Mr Warpenius did not undertake his own noise model per se. However, equally, he was present during the monitoring of the courtyard and it is his observations during this period that informed his opinion. His analysis was not merely a desk top review. He engaged in a more active form of noise monitoring whereby he was concerned not only with the number and proximity of students in a particular area but also how raised individual voices influenced noise.
As I have explained, I am persuaded that Mr Warpenius is correct in his view that raised individual voices controls the LA10 in terms of the student noise. I therefore find that Mr Ferguson's and Mr Reynolds' premise on which the modelling of the green space noise is doubtful and cannot be relied on. That being the case, I find that the likely noise impacts of the Proposed Development are likely to exceed, to a significant degree, the estimated impacts of Mr Ferguson and Mr Reynolds.
It is also the case that Mr Ferguson's modelling is only based on lunch and recess, not the acoustic impacts that arise during classes. That is a further issue that, to me, undermines the evidence of Mr Ferguson.
I therefore find that the estimates of noise levels by Mr Warpenius arising from the Proposed Development are more likely to be correct.
Evaluating noise in a planning sense
I note that, given the operation of the Noise Regulations, in strict terms, it matters not whether the level of 48 dB is exceeded. This is due to the 'community noise' exemption provided for in reg 16(3) of the Noise Regulations.
Rather the focusing on compliance or otherwise with the Assigned Noise Levels under the Noise Regulations, I am more interested in how much the noise levels are likely to increase at 26 and 32 Teague Street (in particular). For the reasons I have explained, I agree with Mr Warpenius that the increase in noise levels arising from the Proposed Development are likely to be significant.
I am mindful that while consideration of the Noise Regulations may help illuminate noise issues, I am not administering the Noise Regulations. The discretion that I am exercising is in relation to 'development' under the PD Act. Even if the Proposed Development could be said to comply with the Noise Regulations that does not, of itself, resolve the planning questions that arise in relation to noise in this case: GMF at [61].
Even if I accepted the opinions of Mr Ferguson and Mr Reynolds that the noise levels would only increase by up to 3 to 4 dB, Mr Ferguson's evidence, which was not challenged or contradicted, was that such an increase in noise levels would still be 'noticeable'.
In my view, the introduction of an 'educational establishment' in the form of a green space that abuts dwellings on Teague Street, and directly projects noise into the rear yards (in particular) of these properties, is unreasonable in a planning sense ‑ even if the increase in noise is regarded as modest under the Noise Regulations (which I do not think it will be). This is because I consider that the noise from the green space will adversely affect (or in the language of Precinct Plan P6 'impinge on') the amenity of the surrounding residents.
It is also the case that the 3 to 4 dB increase anticipated by Mr Ferguson and Mr Reynolds is premised on an assumption that the residents will keep their windows closed at all times the green space is in use. While that may be a reasonable assumption on which to base an acoustic model, I am not certain that outcome is reasonable for adjoining residents in planning terms in relation to amenity.
Of course, the residential amenity of dwellings on Teague Street is already affected by the School. Residents on Teague Street cannot expect the same level of residential amenity as those who live in a purely residential hinterland: St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 at [57] (St Patrick's). During the site view on the first day of the hearing, it was readily apparent that schoolyard noise formed part of the existing amenity on Teague Street.
It is also the case that future developments within the existing School may serve to incrementally affect the amenity of residents in Teague Street. However, the impacts caused by redevelopment of the existing School grounds are, to me, somewhat different from the impacts of the School, in effect, expanding across Teague Street such that School open space is directly alongside residential dwellings. The Proposed Development seeks to, in effect, introduce schoolyard noise alongside dwellings.
I find that the noise generated by the green space will impinge on the amenity of surrounding residents to a significant degree. The amenity impacts on 26 and 32 Teague Street, in particular, will be impacted by the Proposed Development.
While I deal with the concept of amenity more fulsomely when I address the following issue, I note that while amenity is generally assessed against the background of a locality, a development may be refused based on the amenity impacts on one property.
In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 Barker J found that it is open at [28]:
… in a planning assessment to focus on the impact of a development on a particular part of the locality. Indeed, experience in planning assessment suggests that this will often be the case. Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property[.]
See also John Cranston and Shire of SerpentineJarrahdale [2019] WASAT 19 at [124].
The planners also gave evidence in relation to noise as an aspect of amenity. Mr Cruikshank considered the noise impacts on residents would be unacceptable: ts 182, 20 September 2019.
Mr Denholm's view was, based, in particular, on the evidence of Mr Reynolds, that the noise impacts of the Proposed Development were acceptable: ts 226, 20 September 2019.
Issue 3: Visual amenity and compatibility
In addressing the question of how the Proposed Development presents in a visual sense, each planner defined what they considered to be the relevant 'locality'. As the Tribunal observed in St Patrick's at [39], the Tribunal is required to undertake 'an objective inquiry as to the character of the area that represents that state of amenity'.
The term 'locality' is not defined in LPS 1. As the Tribunal observed in Ridgecity Holdings Pty Ltd and City of Albany [No 2] [2006] WASAT 187 at [42]:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
Whilst the opinions of each planner differed in terms of precise boundaries, it was agreed that the School and the residential dwellings on Teague Street and Sunbury Road sit squarely within the locality.
Mr Cruikshank acknowledged that the School is part of the existing locality: ts 185, 20 September 2019. Mr Denholm, quite properly, noted that the locality is only 5 kilometres away from the Perth Central Business District: ts 207, 20 September 2019. Shepperton Road is in close proximity to the Appeal Site although Mr Denholm did not consider that Shepperton Road was necessarily the boundary of the locality: ts 210, 20 September 2019.
Because it is agreed that the locality includes the School and the nearby residential streets, it is unnecessary for me to make any findings on the precise limits of the locality for the purposes of assessing amenity. However, I expressly acknowledge that the locality is not a homogenous residential area. A number of educational and non‑residential uses are present.
The planners gave evidence about the visual acceptability of a pocket park on the Appeal Site. Mr Cruikshank was concerned that the loss of continuity in the streetscape by the punching of gaps (to create the 'green space') in what was a consistent built form in terms of street setbacks: ts 217, 20 September 2019. However, that consistency in built form was lost when the School demolished each of the dwellings on its properties.
I regret to say that I was not impressed by aspects of Mr Denholm's evidence. While he is plainly an intelligent planner, at times, his demeanour and attitude were poor. Rather than answer the questions properly put to him by the respondent's counsel, he, at times, belittled the process and sought to provide respondent's counsel with gratuitous 'advice' about what questions should be asked of him: ts 217, 20 September 2019. However, notwithstanding his demeanour at times, some of Mr Denholm's evidence was considered, insightful and of assistance.
During the planners' evidence various other examples of pocket parks were discussed. In my view, pocket parks are common in many urban areas and not all pocket parks are located on street corners. While I acknowledge Mr Cruickshank's concerns, I do not consider that a mid‑block pocket park is something that could be said to offend planning principle nor the applicable planning framework.
Furthermore, this is a locality that is far from homogenous in terms of building form, scale and land use. In a streetscape sense, I have no difficulty with the idea of a pocket park being made of the Appeal Site.
However, it is to borne in mind that the Proposed Development is not a pocket park in the ordinary sense of that term. Rather it is part of an 'educational establishment' and, despite its appearance, is not for outdoor play nor is it for public use; it is to be used for teaching purposes during class times and for students to access during recess and lunch. The fact that the Appeal Site will operate (in a visual sense) as a pocket park is not a basis on which the Proposed Development should be refused. It follows that I consider that the Proposed Development is visually compatible with its context.
The proposed 2.4 metre acoustic wall is a somewhat separate matter. Mr Cruickshank raised concerns about the height of the proposed acoustic fence. While the Town's Fencing Local Law 2000 (Fencing Local Law) allows fences (behind the front setback line) to a height of 2.4 metres (cl 8), Mr Cruikshank highlighted that the Appeal Site is not a 'Residential Lot' for the purposes of the Fencing Local Law.
On this issue, I prefer Mr Denholm's evidence. I cannot see why if the Appeal Site contained dwellings, a 2.4 metre high fence is regarded as appropriate as of right but absent those dwellings (and replaced with a landscaped green space) a 2.4 metre high fence is said to impinge upon the amenity of neighbouring properties. I do not follow the planning logic in that.
I find that a 2.4 metre high wall is not a basis on which the Proposed Development should be refused. If anything, a wall that is higher than 1.8 metres around the green space operates ‑ in a visual sense ‑ to reinforce the transition between the green space and surrounding residential properties.
It follows that I find that the Proposed Development is acceptable in relation to visual amenity and compatibility.
Issue 4: Community benefit
Although not pressed to any significant degree at the final hearing, in giving 'due regard' to the relevant matters set out at cl 67 of the deemed provisions, I am mindful that I am required to consider the impact of the Proposed Development on the community generally, notwithstanding the impact on particular individuals.
I accept that the Proposed Development will deliver benefits for the School community. However, aside from those who may find the green space visually appealing, the Proposed Development does not otherwise benefit the general community.
While the Proposed Development does provide some community benefit, I do not regard this as a central consideration in these proceedings.
Issue 5: Orderly and proper planning
The question of orderly and proper planning arises under cl 67(b) of the deemed provisions.
The phrase 'orderly and proper planning' is a common planning concept which, prior to the decision of then Pritchard J in Marshall v Metropolitan Redevelopment Authority[2015] WASC 226 (Marshall), had been the subject of little judicial commentary. I gratefully adopt the President's analysis and explanation of the concept of orderly and proper planning set out at [179]-[182] of Marshall which I set out in full below (internal citations omitted):
178The phrase 'orderly and proper planning' is not defined in the [Metropolitan Redevelopment Authority Act 2011 (WA) (MRA Act)]. It is a phrase which is also used in other planning legislation but is not defined in any Western Australian legislation. The phrase is used extensively within the planning context, as the touchstone for the exercise of discretion by decision‑makers. Yet despite the common use of the phrase, it has been the subject of little judicial exposition. Neither counsel nor the Court was able to locate any authority which directly explains the meaning of the phrase 'orderly and proper planning'.
179The starting point for determining the meaning of the phrase 'orderly and proper planning' in s 66(1)(d) of the MRA Act is the ordinary and natural meaning of those words. The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
180The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
181However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.
182While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
MR S WILLEY, MEMBER
31 JANUARY 2020
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